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Brian Lehrer: Brian Lehrer at WNYC. We'll turn to a little legal news now. We're waiting any day now the Supreme Court's last big decision of its term, which would be on an Arizona voting rights law, or voting non-rights law, might be more accurately called. The ruling in that when it comes, sometime this week, we're pretty sure, will probably inform what the Biden administration, the Justice Department, did on Friday, which is announce that they would be suing the State of Georgia over restrictions in its new voting law. We're going to talk about what's going on there as a scene-setter for the Supreme Court decision on Arizona that's going to come down almost certainly this week.

We'll also get into some legal news that's both local to New York and national from the Manhattan District Attorney's Office. A lawyer, as you may have heard, for former president Donald Trump's family business, announced on Friday, the charges will likely be brought against the Trump Organization imminently. There's reporting that the Trump organization has a deadline of this afternoon to argue before a grand jury why they should not be indicted. So I guess trying to get ahead of the news by announcing themselves that this might happen, but two major cases with implications for others, lots to discuss. With me now to break down these cases is Aziz Huq, professor of law at the University of Chicago Law School. Professor Huq, we always appreciate when you come on with us. Welcome back to WNYC.

Professor Aziz Huq: Thanks so much, Brian. Always a delight.

Brian: Let's start with the United States versus Georgia. What is the Justice Department alleging?

Professor Huq: The Justice Department is challenging a Georgia law called Senate Bill 202. This was a measure passed by Georgia's Republican legislature, signed by Brian Kemp in the wake of the 2020 elections, that imposes a slate of restrictions on absentee ballots, drop boxes, the distribution of water and food in long voting lines, and provisional ballots. The charge that the Justice Department is making under the Voting Rights Act is that Senate Bill 202 was enacted for a discriminatory purpose.

Brian: Attorney General Merrick Garland said during a news conference about this, "The rights of all eligible citizens to vote are the central pillars of our democracy. They are the rights from which all other rights ultimately flow." Between that and the answer that you just gave, are they alleging racially discriminatory motivation, per se?

Professor Huq: They are. The Voting Rights Act allows the Justice Department to sue a state under two different legal theories. The first legal theory is that the state has discriminated against a racial group. Here, the Justice Department's argument is that a combination of circumstantial and direct evidence shows that Senate Bill 202 is enacted in order to suppress Black voters, voters who have been particularly crucial in recent both runoff and general elections in Georgia, which have broken in the Democrats' favor.

The other theory under the Voting Rights Act that the Justice Department could pursue, is that the law is invalid because it has a disparate impact on a racial group. Now, what's important about the Justice Department's filing on Friday is that it does not have this second theory. The reason that it does not have the second theory, a disparate impact theory, is that the Supreme Court case that you mentioned, Brnovich, which concerns an Arizona law that limits out-of-precinct voting, concerns the disparate impact theory of the Voting Rights Act, and it seems likely that the Justice Department wanted to steer clear of a theory under the Voting Rights Act that the Supreme Court might be at the cusp of narrowing dramatically.

Brian: Interesting. Talk more about that disparate impact theory because I think people get the basic idea if a law doesn't mention race on its face, but it has a clearly measurable disparate impact by race, then it either should or should not, I guess depending on which side you're on, be held as racially discriminatory. Is that not an established principle in US law at this point?

Professor Huq: The idea that laws can be struck down because they impose a rationally disparate impact, at least in the voting context, goes back to the 1980s when Congress amended the Voting Rights Act explicitly to permit actions for disparate impact. Take the Georgia example. In Georgia, something like 29% of African-American voters cast absentee ballots. This compares to 24% of white voters who cast absentee ballots. A measure restricting absentee ballots is likely to fall harder on Black than white voters as a predictable matter.

Similarly, think about voter ID laws. In Georgia, we know that there are something of the order of 270,000 registered voters who do not have an ID on file. We know that more than half of those registered voters who don't have an ID on file are Black, even though black voters make up only 1/3 of the population. This means that a voter ID law or a law that raises the bar with respect to identification, is more likely to fall on Black rather than white voters.

The reason that Congress in the early 1980s enacted a restriction on voting laws that have a disparate impact on African-Americans in particular, is that it's very hard for a plaintiff, including the federal government, to demonstrate impermissible racial intent when a state wants to, or is savvy enough, to hide that intent. In order to sniff out racial intent, often a disparate impact theory is going to be the most viable pathway. What Congress tried to do in the early 1980s is to formalize that pathway and make it available in more cases.

What the federal courts have done, particularly in the last decade and a half, particularly under the Robert's court, is to make it more and more difficult to bring a disparate impact case by throwing up evidentiary and procedural hurdle to those cases. The Brnovich decision, which we're expecting this week, is likely to throw up more hurdles, and it's in expectation of those hurdles that the Justice Department has gone a different way.

Brian: How important do you expect that decision to be, assuming it goes the way you were just anticipating, and it makes it even harder to bring disparate impact voting rights cases? How much do you think that will allow Texas and Florida and Georgia and all these other states, that in the wake of Trump's big lie about voter fraud, are cracking down on ways that make it relatively easier as opposed to relatively harder to vote? Does this decision to come likely have tremendous implications for all these voter restriction laws?

Professor Huq: I think it's important to remember that the Supreme Court was ahead of the curve with respect to embracing claims about voter fraud. Indeed, the most important decision from the Supreme Court that accepts the idea that the state can restrict some people's access to the ballot because of a concern with voter fraud, even if there's no evidence of such fraud, comes from 2008. It's a case called Crawford, and it concerns voter ID requirements in Indiana.

The court has, for more than a decade now, doubled down on the idea that the state can make it more difficult to vote in the name of preventing fraud, even in the absence of any evidence that such fraud exists. In my view, the critical turning point in the courts' jurisprudence was the moment that they accepted that theory. Because the moment that you accept the idea that you can limit a person A's right to vote on the basis of person B fearing, fantastically perhaps, the possibility of fraud, even in the absence of evidence of fraud, you've opened the door to all sorts of constraints on the democratic process that one party can use to disadvantage the other party and to entrench themselves in power.

That is what you are seeing playing out all over the American south. That is a legacy of Crawford. It's a legacy of a case called Shelby County, where the court gutted another provision of the voting rights tax. What we're seeing playing out now is more of the details of that process. It's really important to see that the process itself began more than a decade ago, well before Trump. It was Trump who picked up cues that came from the Supreme Court as well as other Republican legal elite.

Brian: If the Justice Department is suing Georgia over its new voting law, how are they getting around the ineffectiveness of a disparate impact claim to still try to strike down that law?

Professor Huq: The Justice Department's argument is that Senate Bill 202 was passed with a racial intent. What that means is that Senate Bill 202 was passed with the aim of suppressing the Black vote. The Justice Department provides some evidence that is circumstantial, that goes to the history of voting restrictions in Georgia. It also provides some evidence of statements made by lawmakers in Georgia, that even if they're not explicitly racial, are fairly clearly coded as racial.

I think the big question moving forward is whether a court will be willing to take this kind of circumstantial evidence and willing to find racial intent, notwithstanding the absence off the smoking gun that in almost any case does not exist.

Brian: If they're trying to prove lawmakers intent with only circumstantial evidence, what are some of the prime pieces of that evidence that they will be presenting?

Professor Huq: There was a 2020 op-ed by a representative who was key to the drafting of the new election legislation, that said that absentee balloting is almost always [unintelligible 00:12:22] and it's like something that goes down, and I quote, "In the shady parts of town near the docks you do not want to wander into because of the chance of being shanghaied".

I think that it is fair to say that that kind of language about the shady part of town is racially coded in a way that we ought to recognize. The Justice Department is going to produce that kind of evidence. The Justice Department is going to produce evidence [inaudible 00:12:50] some evidence about the arguments that lawmakers have made to their constituents during rallies, particularly rallies on the Republican side.

The difficulty that the Justice Department is going to face is a Supreme Court case called Abbott v. Perez. This is a 2018 case that concerns the bad intent theory of the Voting Rights Act, rather than disparate impact theory. Abbott v. Perez is a problem for the Justice Department because it suggests that courts ought to presume in the voting rights context, that a legislature acts for good and not bad reasons. This is an extraordinary proposition given the history of restrictions on the franchise in the United States. Nonetheless, it is as of 2018, the law.

Brian: My guest, if you're just joining us, is University of Chicago law professor, Aziz Huq. We're going to turn the page now and talk about a whole other case, because this week we are expecting charges from the Manhattan District Attorney's office in regards to the Trump organization's taxes. The Trump organization reportedly has to produce some kind of counter-argument to a grand jury by this afternoon. For listeners who may have missed the original news over the last few days, that this seems to be coming to a head in with charges likely, can you give us some background?

Professor Huq: The Manhattan District Attorney, Cyrus Vance, has been conducting an investigation of the Trump organization and its compliance with financial laws for the past several years. It's been joined in that by that New York Attorney General [inaudible 00:14:51] this investigation for a long time has been the question whether the Trump organization has manipulated property values to obtain loans and tax benefits that were improper. There are other financial crimes, including potentially improper payments to women that Mr. Trump allegedly had sexual relations with.

Those seem to have become smaller parts of the case. The Vance investigation has been in the public eye before this because the district attorney attempted to obtain documents from the Trump organization's accountants [unintelligible 00:15:38] by using a subpoena. The subpoena was challenged, and the challenge to the subpoena has been up to the US Supreme Court, not once, but on two occasions.

In February of this year, the US Supreme Court rejected the Trump organization's argument that the subpoena was improper. Before the end of February, District Attorney Vance was able to obtain a large amount of documents, we know, from the Trump organization. In the wake of that, he has convened what's called a special grand jury. This is a step in the prosecutorial process in New York that usually comes at the end of an investigation and is usually aimed at challenging specific individuals or [unintelligible 00:16:26] corporations, so we are at the charging phase of the criminal process. The next step is the decision whether or not to charge and what kind of charges would be brought.

Brian: CNN is reporting a short time ago that lawyers for the Trump organization are expected to meet today with prosecutors from the Manhattan DA's office in an effort to convince them not to pursue charges against the company that CNN, quoting a source familiar with the matter. If the allegation is that they inflated the value of their properties in order to get loans against them, and deflated them to argue to the IRS that they shouldn't pay so much in taxes, is that something or is that not something that real estate companies do all the time?

Professor Huq: I can't say whether real estate companies do this all the time. I don't know the answer to that question. I do think thought that it is quite plausible to think that behavior that might be rare but not unknown among ordinary companies, might be, depending upon what the facts show, pervasive and of a different order of magnitude when it comes to the Trump organization. It's certainly possible that you have here something that's akin to jaywalking, something that people do all the time, but you have here a defendant that has taken an ordinary offense to a different order of--

Brian: Of magnitude. In our last minute, if the charges to come are against the Trump organization, does Donald Trump, or does any other individual get held responsible or can they hide behind whatever fine might be leveled? I don't know what other punishment there would be against the company. Is there a mechanism in this for Donald Trump or his deputies to be held personally accountable for a crime that was committed in their name?

Professor Huq: Absolutely. There are charges anticipated against the CFO of the Trump organization, Allen Weisselberg, on the basis of perks that Mr. Weisselberg and his son, Barry, who manages the Wollman Rink in Central Park, received from the organization. It's very rare for a prosecutor to allege tax fraud based upon perks. In all likelihood, the reason for these charges coming against Mr. Weisselberg, are not that the prosecutor wants to see him or his son behind bars, but rather because they want his cooperation. This is called flipping a witness and I think--

Brian: About Trump individually.

Professor Huq: - if you see Weisselberg plead guilty, you'll see potentially Mr. Trump himself at risk of some kind of legal liability.

Brian: There we have to leave it with University of Chicago law professor, Aziz Huq. Thank you for so much insight into these two cases.

Professor Huq: Thank you for having me, Brian.

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